Judgment opens wider visa vistas

Cape Town – A precedent-setting judgment focusing on South Africa’s new immigration regulations could see foreigners with tourist visas who are living here with South African partners being given spousal visas without having to return to their home countries to apply for the documents.

On Friday, a judgment handed down in the Western Cape High Court found that Zimbabwean Lea Stewart, 40, whose husband and four sons live in Cape Town, did not have to return to Zimbabwe to apply and wait for a spousal visa from SA. Instead it was ordered that she be granted one in South Africa.

Immigration lawyer Craig Smith said it effectively meant foreigners married to or in a permanent relationship with a South African citizen or permanent resident holder, could apply to change the conditions of their visa to a spousal one without having to return to their home country. They also do not have to wait in their home country for the outcome of their applications.

The judgment said the Stewart family arrived from Zimbabwe on May 14, 2014 and set up home in Cape Town.

Stewart entered the country on a 90-day visitor’s visa. The new immigration regulations came into effect about two weeks after they arrived and they had not had any forewarning the laws would change.

Before their arrival they had enquired in Harare about how to obtain permanent residency for Stewart. “They were advised that she would first require a ‘spousal visa’ before she could apply for permanent residency, and that both visas could be applied for once she was in the Republic,” the judgment said. “Should this advice have proved to be correct, the present application would be unnecessary.”

Stewart and her husband believed she needed a certificate from police to apply for temporary residency, so she returned to Zimbabwe in August 2014 to get this document. When she returned to South Africa she was given another 90-day visitor’s visa.

Stewart began applying for a spousal visa on her return, but her application was denied and she applied to have this reviewed. This was also denied.

“This decision was based on the fact that she did not qualify for a temporary residence permit… because she was not permitted to change the conditions of her current visitor’s visa in terms of (a section in terms of an) Immigration Regulation,” the judgment said.

Stewart tried to appeal this too. The judgment said the Immigration Act made provision for a foreigner to apply to change the status of their visa, but not the conditions of their visa. Stewart and her family claimed that a section of the Immigration Act was inconsistent with the constitution.

The judgment found that Stewart was entitled to be granted a spousal visa.

The director-general of Home Affairs was also directed to issue Stewart a visitor’s visa and allow her to apply for permanent residence within three months. Home Affairs was ordered to pay the family’s costs.